The Police reported to a school that an allegation had been made of historical sex abuse by the Claimant school caretaker (outside, and before, his employment). Though disbelieving, the Head suspended the Claimant whilst investigations continued.

After about a year, the Head decided to recommend dismissal to the Governors, though nothing further had happened to support the allegation, the accuser’s mental state was being assessed, those witnesses whom the accuser had identified as supporting his claims in fact did not do so, and it was said that a decision as to whether to charge the Claimant or not would be made within the immediate future.

The Governors dismissed, and on appeal that was upheld, on the basis that even if the Claimant were exonerated the fact of the allegation alone should have that result. Their principal concerns were the risk to children, and to the school reputation.

However, the employer relied on some other substantial reason (SOSR) as the statutory justification for dismissing the Claimant. A reasonable employer needs evidence to come to the conclusion that, whatever the reason is, it is SUBSTANTIAL enough to justify dismissal. That evidence did not exist.

The EAT had sympathy for the employer but they remain an employer, with an employer's responsibilities under employment legislation: "The employer is always likely to be in a cleft stick, unless it already has some reason of its own to suspect the employee, or some good reason to think that the allegations are out of character to an extent that diminishes their reliability.

The duty of such an employer concerned with serving children is first and foremost to those children, but that does not remove its responsibility to its employees... We would, however, emphasise that those principles leave room for a Tribunal to draw its own conclusions both as to whether there was a reason of a kind justifying dismissal (emphasising those last words, which may too often be forgotten in examining a supposed SOSR), and whether having regard to equity and the substantial merits of the case, in the circumstances, including the size and administrative resources of the employer’s undertaking, the employer acted reasonably or unreasonably in treating that reason as sufficient."

Practical lessons from this decision

In this case the employer did not have sufficient reason to justify the dismissal - they needed more than concern for their reputation and the children in their care. The employee lost his counter appeal over compensation - he could not show any psychiatric injury or depression was caused by the dismissal as opposed to the allegations. http://bit.ly/1eOTB0k